CH. V. s. 6. the house it was held, that no goods passed under the bill, Contract to be except those specified in the inventory (b). Considered. Falsa demon stratio non nocet. Effect of general words, where unequivocally expressed. Illustrations of this. But this rule must be qualified by the well-known maxim,— falsa demonstratio non nocet; the meaning of which is, that if there be, in the former part of the instrument, an adequate and sufficient description, showing with convenient certainty the subject-matter to which it was intended to apply, a subsequent erroneous addition will not vitiate that description (c). And, generally, although in the construction of all instruments. it is the duty of the Court not to confine itself to the force of particular expressions, but to collect the intention of the parties from the whole instrument taken together: still, where by the use of general words such intention is clearly and unequivocally expressed, every Court is bound by it, however capricious it may be, unless it be plainly controlled by other parts of the instrument (d). Thus, where a covenant was entered into by the assignor of certain shares in a patent right, that he had good right, full power, and lawful authority to assign and convey the said shares, and that he had not by any means, directly or indirectly, forfeited any right or authority he ever had, or might have had, over the same it was held, that the generality of the former words of the covenant was not restrained by the latter (e). And Barton v. Fitzgerald (f) is to the same effect. So, where by a memorandum of agreement containing words of present demise, A. agreed to let certain premises to B. for two years at a rent certain, and that B. should have the option of purchase at the end of or during the term-"it being understood that A. is possessed of the same premises for his own life, and the life of M., and the survivor of them:" it was held, that by this agreement A. bound himself, to make title to the premises for the lives of himself and M., and the life of the survivor (g). And where the defendant purchased from the plaintiff an estate charged with an annuity to M. S.; and covenanted with the plaintiff to pay the annuity to the person who for the time being should be entitled thereto, and to indemnify the plaintiff from all claims on account of the annuity; the Court held, that the (b) Wood v. Rowcliffe (1851), 6 Exch. 407. (c) Morrell v. Fisher (1849), 4 Exch. 591, 604; Llewellyn v. Earl of Jersey (1843), 11 M. & W. 183, 189; Doe d. Hubbard v. Hubbard (1850), 15 Q. B. 227, 241, 245. See also Magee v. Lavell (1874), L. R., 9 C. P. 107; Webber v. Stanley (construction of will) (1864), 16 C. B., N. S. 698, 752; Smith v. Ridgway (1866), L. R. 1 Ex. 331, Ex. Ch. (d) Per the Vice-Chancellor, Hume v. Rundell (1824), 2 S. & S. 177. (e) Hesse v. Stevenson (1803), 3 B. & P. 565. (f) Barton v. Fitzgerald (1812), 15 East, 530; 13 R. R. 519. (g) Worthington v. Warrington (1848), 5 C. B. 635. covenant to pay the annuity was absolute and independent, and not qualified by the covenant to indemnify; and that, therefore, the plaintiff might sue for the non-payment of the annuity to the party entitled, although—inasmuch as it was not a personal charge on the plaintiff he could not be damnified by its nonpayment (h). But the general introductory words of a usual covenant for title will not be drawn down in this way, and applied to others in which they are not found, when it appears from other parts of the deed that such was not the intention of the parties (i). CH. V. s. 6. Whole Contract to be Considered. Contract may be inferred from words of So, for the same reason, words used by way of exception may constitute a covenant or agreement (k). Thus, a covenant in a lease to plough the premises demised, "except the rabbit-warren exception, and sheep-walk," amounts to a stipulation not to plough the rabbit-warren and sheep-walk; and action will lie for so doing (1). And in like manner, a covenant may arise, even from words or proviso, introduced into a clause by way of proviso or condition. Thus, if a lessee covenant to repair, "provided always, and it is agreed, that the lessor shall find great timber;" this amounts to a covenant by the lessor to find great timber, and is not a mere qualification of the lessee's covenant (m). So, if A. lease to B. for years, on condition that he will keep or condition and leave the premises in as good plight as he found them; covenant will lie against B., for omitting to leave the premises in good plight at the end of the term (n). But, to have this effect, it must be clear that the words were meant to operate as an agreement, and not merely by way of condition or qualification (o). And, therefore, where the lessee of an unexpired term, assigned the lease by indenture sealed by the assignee, "subject to the payment of the yearly rent, and the performance of the covenants and agreements reserved and contained in the said lease;" this was held not to amount to a covenant by the assignee to pay the rent during the residue of the unexpired term, so as to entitle the lessee to sue him for not paying rent which he, the lessee, had been called upon to pay to the lessor after the assignee had assigned over (p). (h) Saward v. Anstey (1825), 2 Bing. 519. (i) Young v. Raincock (1849), 7 C. B. 310. (k) See per Lord Gifford, C.J., Saltoun v. Houston (1824), 1 Bing. 433; per Cur., Sampson v. Easterby (1829), 9 B. & C. 505. (1) Duke of St. Albans v. Ellis (1812), 16 East, 352. (m) Holder v. Tayloe, Roll. Abr. 518 (C.), 1, 2. (n) Roll. Abr. 518 (C.), 1. 5. (0) Per Lord Denman, C.J., Wolveridge v. Steward (1833), 1 C. & M. 645, Ex. Ch.; and see Holder v. Tayloe, Roll. Abr. 548 (C.), 1, 3; Geery v. Reason (1629), Cro. Car. 128. (p) Wolveridge v. Steward (1833), 1 C. & M. 645, Ex. Ch. CH. V. s. 6. Whole Contract to be Considered. The Court will some times look dehors the instrument; but not at alterations made in the instrument, while the parties were negotiating. Ancient grants. Several instruments in pari materiâ. Lease and counterpart. Burchell v. Clark. Ambiguous terms. Inconsistent clauses. In general, a contract must be construed by the provisions contained in it, and not by anything dehors; but still it appears, that if the contract be ambiguous, the Court may look at the acts of the parties—although not to their subsequent declarations or admissions, either verbal or written (q)-in order to ascertain their intention at the time of making the contract (r). Nor, in construing a contract, is the Court entitled to look at what the parties thereto said or did whilst the matter was in negotiation. And, therefore, where an instrument appears to have been altered while the parties were negotiating, the Court cannot look at it as it originally stood, and at the alterations which were made in it, to see whether those alterations will throw any light upon the question of intention (s). In the case of ancient documents, where a question arises as to what passed by a particular grant, such grant may be explained by modern usage (t).. So, several deeds made at the same time to effect one object, may be construed as one assurance, but so that each shall have its distinct effect in carrying out the main design (u). Thus, a lease and counterpart are two instruments relating to one transaction; and a palpable mistake in the lease may be corrected by reference to the counterpart, just as it might be by reference to other parts of the lease itself (x). And where there were two instruments in pari materiâ, but not made at the same time: it was held that the later instrument might be looked at, to aid the Court in construing the earlier (y). It is also a well-approved rule that, where parties have used language which admits of two constructions, the one contrary to the apparent general intent, and the other consistent with it, the law assumes the latter to be the true construction (z). Where the different parts of an instrument are inconsistent, or repugnant effect must be given to that part which is calculated to carry into effect the real intention; and that part which would defeat it must be rejected (a). And where there are two clauses in a contract, so totally repugnant to each other that they cannot stand together, (q) Per Lord Campbell, C.J., and Erle, J., Lewis v. Nicholson (1852), 18 Q. B. 503. (r) See Chapman v. Bluck (1838), 5 Scott, 515; per Tindal, C.J., Doe d. Pearson v. Ries (1832), 8 Bing. 178; but see per Maule, J., Doe d. Morgan v. Powell (1844), 7 M. & G. 980. (s) See Inglis v. Buttery (1878), 3 App. Cas. 552; and see per Cur., Cumberland v. Bowes (1854), 15 C. B. 348. (t) Per Parke, B., Duke of Beaufort v. Mayor of Swansea (1849), 3 Exch. 413. (u) 1 Fonbl. Tr. Eq., 5th ed. 436, 437. (x) Burchell v. Clark (1876), 2 C. P. D. 88, C. A. (y) Per Alexander, C.B., Fowler v. Hunter (1829), 3 Y. & J. 506. (2) Per Cur., Ford v. Beech (1848), 11 Q. B. 852, Ex. Ch. (a) Per Cur., Walker v. Giles (1848), 6 C. B. 662, 702. CH. V. s. 6. Whole Contract to be the former is to be received and the latter rejected (b). Thus, if there be a personal covenant, followed by a proviso that the covenantor shall not be personally liable under the covenant, the Considered. proviso is repugnant and void; whereas, if the proviso merely limits the personal liability under the covenant, without destroying it, the proviso is valid (c). insensible. And so, if there be in a contract a word or phrase to which no Words sensible meaning can be given, it must be eliminated in order to carry out the intention of the parties (d). SECT. 7.-Construction according to Lex Loci Contractus. It is an undoubted general rule, that the law of the country where it is made is to be considered in expounding a contract (e). And, accordingly, before proceeding to interpret a foreign contract, the Court must first be informed of any special law or peculiar rule of construction of the foreign state, whereby the contract may be affected (ƒ). Contract to be contractus. contract in one country, to be per formed in another. Co., In re. But this rule admits of an exception: viz., when the parties, at Rule as to the time of making the contract, had a view to its execution in a different kingdom; for contracts are also to be considered according to the place where they are to be executed (g), and the Court will look at all the circumstances to ascertain by the law of which Missouri country the parties intended the contract to be governed, and will Steamship enforce the contract accordingly, unless it should contain stipulations contrary to morality or expressly forbidden by positive law (h), as in Kaufman v. Gerson (i). Thus, a bill of exchange Kaufman v. payable in France is a foreign bill, although it be actually made in England. And, due notice of dishonour being parcel of the contract, it is sufficient to entitle a party to recover on such a bill in (b) Shep. Touch. 88; and see Furni vall v. Coombes (1863), 5 M. & G. 736. (c) Per Jessel, M. R., Williams v. Hathaway (1877), 6 Ch. D. 544. (d) Per Brett and Archibald, JJ., Stone v. Corporation of Yeovil (1876), 1 C. P. D. 691. V. (e) Per Lord Mansfield, C.J., Robinson Bland (1793), 1 W. Bl. 234, at p. 256; per Tindal, C.J., Trimbey v. Vignier (1834), 1 Bing. N. C. 151; and see Fergusson v. Fyffe (1841), 8 Cl. & Fin. 121; and De la Vega v. Vianna (1830), 1 B. & Ad. 284. (f) Di Sora v. Phillips (1863), 33 L. J., Ch. 129, H. L.; and see Male v. Roberts (1800), 3 Esp. 163, 164; 6 R. R. 823. As to evidence of foreign law, see (g) Per Lord Mansfield, C.J., Robinson (h) Missouri Steamship Company, In re, 42 Ch. D. 321, C. A. (Contract in Massachusetts to convey cattle from Boston to England in British ship, the shipowner not to be liable for negligence-a stipulation void by Massachusetts but not by English law.) (i) Kaufman v. Gerson, [1904] 1 K. B. 591, C. A., and Ch. XXI, post (contract in France in consideration of forbearance to prosecute, not enforceable here). Gerson. CH. V. s. 7. Construction according to Lex Loci. Contracts of affreightment. Ascertainment of meaning of contracts in foreign language. Local terms or phrases. 1000 1200 rabbits. Meaning of the parties is for the jury. this country, to show that he gave notice of dishonour according to the law of France (i). And in the case of contracts of affreightment, if the contract does not provide otherwise, then, as between the parties thereto, all questions arising under such contract in respect of sea damage and its incidents, are to be determined by the law of the country to which the ship belongs (k). Where a Brazilian in Brazil executed a power of attorney in Portuguese to a London stockbroker to buy and sell stock, and afterwards sought to set aside a sale of stock on the ground that it was not warranted by the power, the Court held that the intention of the Brazilian was to be ascertained by competent translators and experts, including, if necessary, Brazilian lawyers, and that if according to such evidence, the intention appeared to be that the authority should be executed in England, the extent of that authority, so far as transactions in England were concerned, must be determined by English law (1). Even as to contracts made in this country, there are cases in which regard must be had to the usage or custom of the place where the contract was made, or to which it had reference, in order to discover the meaning and intention of the parties. Where, therefore, it appeared that in the place where a contract concerning a sale of cider was made, that word meant the juice of the apples as soon as it was expressed it was held that the contract must be construed to have been for a sale of cider in that sense of the word (m). And so, where a lease was granted of a warren in Suffolk, and the landlord covenanted to pay 60l. per thousand rabbits, which the tenant was to leave on the premises; and it appeared that, by custom in Suffolk in such cases, one thousand rabbits meant one thousand two hundred: it was held that the landlord was only bound to pay for rabbits reckoned at that rate (n). In cases such as these, however, it is for the jury to say, on the whole evidence, whether or not a contract which contains terms which have a peculiar meaning, owing to some usage or custom, was in fact made with reference to that usage or custom; and that the mere fact of the existence of such a custom in the district (i) Rothschild v. Currie (1841), 1 Q. B. see Missouri Steamship Company, In re, 42 Ch. D. 321, and note (h), ante. (1) Chatenay v. Brazilian Submarine Telegraph Company, [1891] 1 Q. B. 79, C. A. (m) Studdy v. Sanders (1826), 5 B. & C. 628. (n) Smith v. Wilson (1832), 3 B. & Ad. 728. |